For the majority of Australians superannuation can be an individual’s largest asset, the thought of losing it when declaring bankruptcy is a very honest concern for a lot of our clients. With certain areas of the economy doing quite well and other components enduring tough economic times, bankruptcy numbers in Australia still continue to increase. Economists don’t talk about Australia’s two-speed economy much anymore, but it definitely still is two-speed. Due to a long-term boom in the Sydney and Melbourne housing markets, these major centres are doing quite well running at a nice speed, with no sign of stopping anytime soon. On the other hand mining areas in North Queensland and Western Australia have basically stopped dead and in some areas firmly stuck in reverse.

The Past: Superannuation and bankruptcy. Not very long ago, the Bankruptcy Act 1966 determined that all property (including superannuation) that belonged to a bankrupt at the start of their bankruptcy was to be given to their creditors. This brought up the question: was there an interest in a superannuation fund property? The law specifically answered this question with a reluctant no – the interest of a bankrupt in a regulated superannuation fund was not property divisible among creditors. Nevertheless, this protection of superannuation was not set in stone. In 2007 the laws changed, at that time the excess of a bankruptcy’s interest in a superannuation fund that exceeded the pension ‘reasonable benefit limit’ or (RBL) did constitute property that was divisible among creditors.

Post 2007 we have ‘Simpler Super’. The simpler super changes denoted a significant change for superannuation and bankruptcy. The main change was, put simply, your superannuation is safe over and above the pension RBL amount. This indicates that protection of superannuation upon bankruptcy is now absolute, technically, a bankrupt can now have a large amount of super and it will be safe. The government officially illustrated the changes through its explanatory memorandum, Superannuation Legislation Amendment (Simplification) Bill 2007, as follows:

Currently, under the Bankruptcy Act 1966, a bankrupt’s interest in a superannuation fund up to the bankrupt’s pension RBL is protected from being divisible among creditors. A bankrupt’s superannuation interest in excess of the pension RBL automatically vests in the bankruptcy trustee. The amendments remove references to RBLs from the Bankruptcy Act 1966 to ensure consistency with the new Simplified Superannuation rules, which abolish RBLs with effect from 1 July 2007. This means that, from 1 July 2007, a bankrupt’s entire interest in a superannuation fund is protected, if you know what you are doing.

Frequently Asked Questions

Question: Does this imply that I can freely contribute excess funds to my superannuation before I file for bankruptcy and it will be safe?

Answer: No. Although these changes safeguard your superannuation, 100% voluntary contributions over and above your employers required 9.5% will be seen as an asset and available to creditors given that it will be viewed as a preference payment. In other words, if you sell your house and make $50,000 profit from doing this, then shovel it off into your super fund, the trustee will judge that as a preference payment, or in plain English you paid your super fund $50,000 in preference to your creditors, so the trustee will claw back that excess from the fund, and apply it towards your debts.

Question: What about my Self-Managed Super Fund (SMSF), is it also safe?

Answer: Yes. But there are things you will want to do once you are bankrupt; In the case of a self-managed super fund and bankruptcy, keep in mind that the Superannuation Industry Supervision Act 1993 rules that a “disqualified person” must not be a trustee of a superannuation entity. To put it simply, if you are bankrupt you can no longer be a trustee of any trust including a super fund. A disqualified person includes a person who is an insolvent under administration, for instance an undischarged bankrupt.

Ultimately this means if you have a SMSF, you need to retire or resign as the trustee, or director of the corporate trustee, before becoming bankrupt or within six months after declaring bankruptcy. Failure to do so can lead to imprisonment for up to 2 years. Soon after the person resigns/retires, the SMSF will quite possibly fail to meet the basic conditions needed to be an SMSF and will require a restructure.

Restructuring can include transferring the bankrupt’s superannuation interests to a regulated superannuation fund and terminating the SMSF. Or you can elect a registrable superannuation entity (RSE) licensee to act as trustee of the SMSF, at which point the fund would stop being an SMSF and would become another type of superannuation fund. Even though RSE licensees can be pricey, this is more suitable where the fund has ‘lumpy’ non-liquid assets (including property) that can not quickly be rolled into another superannuation fund. Normally, a person who holds an enduring power of attorney in respect of a member can act as trustee of the SMSF rather than the member.

Question: I’m old enough to draw down my super, are all my payments to myself safe irrespective of how much?

Answer: Take care here, this could definitely cost you! According to the discussion above, an interest in a superannuation fund is totally protected upon bankruptcy. The same applies to any lump sum acquired from a superannuation fund based on the Bankruptcy Act. So for example, you as a bankrupt who acquires a lump sum of $10 million from your superannuation fund could keep that money and it will be safe. Having said that be warned the same is not true of pension payments acquired from superannuation funds. They are not protected in a similar way. Pension payments are considered as income and income only receives minimal protection from creditors. The particular level of protection afforded to pension payments is adjusted for inflation twice a year, but as at 22 February 2017, the level is as follows:

Dependants Income Limit

0 $54,736.50.

1 $64,589.07.

2 $69,515.36.

3 $72,252.18.

4 $73,346.91.

over 4 $74,441.00.

Anything you earn over these amounts each year, 50% of the excess is payable to the trustee the same as any income earned during bankruptcy and paid to creditors.

The difference in the treatment between lump sums and pensions has considerable practical implications now that account-based pensions have been introduced; don’t assume it’s all safe and no matter what you do, get the right advice. At this point we encourage you to contact us and we will point you in the right direction. Put simply, your super must be handled with care. Every case has a distinct set of circumstances and between our firm and your financial advisor, we will secure the right outcome for you. If you need to know more, call Bankruptcy Experts Gladstone on 1300 795 575.

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